Frederick A.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

May 14, 2019

0120182294 (E.E.O.C. May. 14, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Frederick A.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120182294
Hearing No. 450-2015-00074X
Agency No. ARUSASR14FEB00492

DECISION

On May 25, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
May 17, 2018, final order concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final order.
ISSUES PRESENTED

Whether the EEOC Administrative Law Judge properly granted summary judgment; and whether
Complainant established that he was discriminated against and subjected to harassment based on
race, color, religion, and reprisal (prior EEO activity) as evidenced by 4 separate events that formed
the bases of his claim.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Maintenance
Administrative and Supply Technician, GS-0303-07, at the Agency’s 63rd Regional Support
Command (RSC), Area Maintenance Support Activity (AMSA) facility in Grand Prairie, Texas.
On March 27, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (African-American), religion (Christian), color (Black), and
reprisal for prior protected EEO activity under Title VII when:

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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A. On numerous occasions, most recently on February 18, 2014, he was not selected as acting
supervisor within Area Maintenance Support Activity (AMSA).

B. On March 7, 2014, Complainant was issued a Letter of Reprimand for failure to follow
leave procedures and being Absent Without Leave (AWOL).

C. On April 8, 2014, Complainant learned his computer was taken away by his supervisor
(S1) even though there was a prior agreement he would keep his computer.

D. On April 18, 2014, after S1 placed Complainant’s personal information on his desk so
others could see it, S1 stated to Complainant “get over it.”

Complainant’s second line supervisor (S2) explained that, in the absence of a formal process, he
selected S1 for the acting supervisor position because S1 had worked for him as an inspector and
they both shared the same work philosophy; and that he did not select Complainant because, among
other things, his resume did not match his current duties.

With regard to claim B, the Agency explained that, consistent with advice from the Agency’s Legal
office, Complainant was issued a reprimand because he was AWOL and did not provide any new
information that would have mitigated the action.

Regarding claim C, the Agency indicated that Complainant’s computer was removed because there
was a mandate from upper Command requesting the turn-in of certain computers based on a life
cycle replacement; and that no one had a “say-so” on which computers could remain in service.

Finally, the Agency explained that placing a copy of the reprimand on Complainant’s desk was a
mistake for which S1 was formally counseled. S1 denied telling Complainant to “get over it” and
witness testimony in the record supported the denial.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing
and over Complainant’s objections, issued a decision without a hearing on May 17, 2018. When
the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s
decision finding that Complainant failed to prove that the Agency subjected him to discrimination
as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i).

CONTENTIONS ON APPEAL

On appeal, among other things, Complainant reiterates his allegations and his assertion that in
recent history, there has been no minorities (African American, Hispanics or Asian Americans,
etc.) selected for temporary or permanent supervisory positions at the Agency. He requests
reconsideration of the AJ’s decision to “discount” his claim of discrimination and retaliation.
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The Agency did not submit a brief on appeal.

STANDARD OF REVIEW

In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment discrimination
statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission’s own assessment of the record and its
interpretation of the law”).

ANALYSIS AND FINDINGS

AJ’s Issuance of a Decision Without a Hearing

We must first determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission’s regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary
judgment is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether there are genuine issues for
trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment
stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An
issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of
the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case.

If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding
a hearing is not appropriate.
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In the context of an administrative proceeding, an AJ may properly consider issuing a decision
without holding a hearing only upon a determination that the record has been adequately developed
for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she
ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a
decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material
facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery
before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes
summary judgment “where the [party opposing summary judgment] has not had the opportunity
to discover information that is essential to his opposition.” Anderson, 477 U.S. at 250. In the
hearing context, this means that the administrative judge must enable the parties to engage in the
amount of discovery necessary to properly respond to any motion for a decision without a hearing.
Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if
necessary, after receiving an opposition to a motion for a decision without a hearing).

Upon review of the record, we find that there are no genuine issues of material fact presented here.
The record has been adequately developed, Complainant was given ample notice of the AJ’s intent
to issue a decision without a hearing, he was given a comprehensive statement of the allegedly
undisputed material facts, he was given the opportunity to respond to such a statement, and he was
given the chance to engage in discovery before responding, if necessary. In his rebuttal and appeal
statements, Complainant provided no new information; and much of his comments consisted of
questions and information already set forth in the record. We find that, even assuming all facts in
favor of Complainant, a reasonable fact-finder could not find in his favor, as explained below.
Therefore, we find that the AJ’s issuance of a decision without a hearing was appropriate.

To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must initially establish a prima facie case by demonstrating that he was subjected to
an adverse employment action under circumstances that would support an inference of
discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804
n.14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, a complainant must prove, by a preponderance of the evidence, that the agency’s
explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
religion, race, color, and reprisal; we find that the Agency articulated legitimate, nondiscriminatory
reasons for its actions, as indicated above. We find no evidence of pretext here. Moreover, we
find that even if S1 told Complainant to “get over it,” this remark is neither severe or pervasive
enough to rise to the level of unlawful harassment, nor is there evidence that it was based on
Complainant’s race, religion, color, or in reprisal for engaging in protected EEO activity.
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On appeal, Complainant asserts that in recent history, there has been no minorities (African
American, Hispanics or Asian Americans, etc.) selected (for a temporary or permanent)
supervisory position at the Agency. However, Complainant did not provide any new evidence on
appeal that was not previously available to the AJ for review and consideration; and his assertions
do not justify reconsideration of the AJ’s decision and the Agency’s final order as requested. We
note that, in addressing the AJ’s issuance of a decision without a hearing, a complainant’s
opposition must consist of more than mere unsupported allegations or denials and must be
supported by affidavits or other competent evidence setting forth specific facts showing that there
is a genuine issue for a hearing. See Celotex, 477 U.S. at 324.

CONCLUSION

The AJ’s issuance of a decision without a hearing was appropriate. Complainant did not establish
that the Agency subjected him to discrimination on the bases of religion, race, color, and reprisal
for prior protected EEO activity. Therefore, based on a thorough review of the record and the
contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s
final order concluding that summary judgment in favor of the Agency is appropriate because
viewing the evidence in the light most favorable to Complainant, the record shows that he has
offered no evidence to demonstrate that the Agency’s articulated reasons for its actions are a
pretext for discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604.
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The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO
Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof
of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title. Failure to do so may result
in the dismissal of your case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

May 14, 2019
Date